Official Opinion 2005-6

November 29, 2005

To:

Administrator, Governor's Office of Consumer Affairs

Re:

The Governor's Office of Consumer Affairs, through its criminal law enforcement investigators, is authorized to conduct investigations of possible violations of O.C.G.A. § 16-9-4 if there is reason to suspect that the manufacturers of false or fraudulent identification documents are using computers or computer networks in the creation of documents intended to deceive or be used in fraudulent schemes, including but not limited to identity fraud, or other species of theft.

You have requested my opinion whether the Governor’s Office of Consumer Affairs (OCA) is authorized to investigate violations of O.C.G.A. § 16-9-4, which prohibits the manufacture, sale, distribution, possession, or use of false or altered identification documents.1 You have also requested an interpretation of O.C.G.A. § 10-1-393.5 (Supp. 2005), which is a primary source of OCA’s criminal law enforcement powers, particularly whether OCA may investigate violations of O.C.G.A § 16-9-4 under the grant of powers contained in O.C.G.A. § 10-1-393.5 (Supp. 2005). These questions arise in the context of OCA’s efforts to investigate cases of financial identity fraud.

Code section 45 6 5 provides that the “[p]owers of all public officers are defined by law and all persons must take notice thereof.” See City of Atlanta v. Black, 265 Ga. 425, 426 (1995) (city attorney is public officer within meaning of O.C.G.A. § 45-6-5 and his authority is limited by the laws that define and prescribe his powers). As a general matter, in order for a public officer to exercise a particular power there must be legislative authorization to do so.

Under the interpretive maxim expressio unius est exclusio alterius (the expression of one thing implies the exclusion of all others), if public officers are expressly authorized to exercise certain powers or jurisdiction, such officers would not generally be authorized to exercise other powers not provided for by statute. For example, in O’Donnell v. Durham, 275 Ga. 860 (2002), the Supreme Court considered the question of which superior court could grant bail after a successful habeas corpus action attacking the constitutionality of a conviction. The Supreme Court reasoned that even though the superior courts are generally authorized to hear and determine questions concerning habeas corpus and bail, O.C.G.A. § 9-14-52(c) specifically authorized bail to be set by the superior court in which the sentence was originally imposed. “[U]nder the maxim of ‘expressio unius est exclusio alterius’ the express mention of one particular superior court impliedly excludes all others.” Id. at 861. Thus, in determining the extent of and limitations on the jurisdiction of OCA and its criminal law enforcement authority, we are guided by the express language of statutes granting such authority.

A primary source of criminal law enforcement authority for OCA is O.C.G.A. § 10-1-393.5 (Supp. 2005). Subsection (e) thereof authorizes OCA to exercise criminal law enforcement powers for violations of the criminal provisions of Article 15 of Title 10:

Persons employed full time or part time for the purpose of conducting potentially criminal investigations under this article shall be certified peace officers and shall have all the powers of a certified peace officer of this state when engaged in the enforcement of this article, including but not limited to the power to obtain, serve, and execute search warrants. . . . Such certified peace officers shall be authorized, upon completion of the required training, with the written approval of the administrator, and notwithstanding Code Sections 16-11-126, 16-11-128, and 16-11-129, to carry firearms of a standard police issue when engaged in detecting, investigating, or preventing crimes under this article.

There are several provisions in Article 15 of Title 10 which may be enforced as crimes. For example, O.C.G.A. § 10-1-393.5(b) (Supp. 2005) provides:

Without otherwise limiting the definition of unfair and deceptive acts or practices under this part, it shall be unlawful for any person who is engaged in telemarketing, any person who is engaged in any activity involving or using a computer or computer network, or any person who is engaged in home repair work or home improvement work to: (1) Employ any device, scheme, or artifice to defraud a person, organization, or entity; (2) Engage in any act, practice, or course of business that operates or would operate as a fraud or deceit upon a person, organization, or entity; or (3) Commit any offense involving theft under Code Sections 16 8 2 through 16 8 9.

In addition to any civil penalties, pursuant to O.C.G.A. § 10-1-393.5(c) (Supp. 2005) a violation of O.C.G.A. § 10-1-393.5(b) (Supp. 2005) is punishable under O.C.G.A. § 16-8-12(a)(5) (Supp. 2005) by imprisonment for not less than one year nor more than ten years or, in the discretion of the sentencing court, as for a misdemeanor for a first offense. A second or subsequent offense may be punished by imprisonment for not less than one year nor more than 20 years.

Code section 10 1 393.6(a) (Supp. 2005) prohibits certain actions by telemarketers, including “request[ing] a fee in advance to remove derogatory information from or improve a person’s credit history or credit record,” or to “[r]equest or receive payment in advance from a person to recover, or otherwise aid in the return of, money or any other item lost by the consumer in a prior telemarketing transaction,” or to “procure the services of any professional delivery, courier, or other pickup service to obtain immediate receipt or possession of a consumer’s payment” prior to delivery of the goods and an opportunity for the consumer to inspect such goods. Violations of this section are also punishable under O.C.G.A. § 16-8-12. Likewise, violations of O.C.G.A. § 10-1-393.2(i) and (o), regulating health spa contracts, are punishable as criminal misdemeanors in addition to other penalties. O.C.G.A. § 10-1-393.2(p).

In addition to investigating the deceptive trade practice crimes contained in Title 10, OCA has been given specific authority to investigate financial identity fraud. O.C.G.A. § 16-9-123. That section authorizes the administrator of OCA to investigate “any complaints of consumer victims regarding identity fraud” and grants the administrator all investigative powers available under the Fair Business Practices Act of 1975. In addition, O.C.G.A. § 16-9-127 authorizes the administrator “to initiate any proceedings and to exercise any power or authority in the same manner as if he or she were acting under Part 2 of Article 15 of Chapter 1 of Title 10, as regards violations or potential violations of this article.”

While O.C.G.A § 16-9-4 does not itself specifically confer authority on OCA to investigate violations of its provisions, OCA is empowered in O.C.G.A. § 10-1-393.5(b)(1)-(3) to conduct criminal investigations when a computer or computer network is used in conjunction with any “device, scheme, or artifice to defraud” or any “act, practice, or course of business that operates or would operate as a fraud or deceit” or to commit any theft in violation of O.C.G.A. §§ 16-8-2 through 9. To the extent that a criminal enterprise is reasonably suspected of using computers or computer networks to make, alter, or otherwise use or facilitate the use of identification documents in furtherance of a scheme to defraud, deceive, or steal, OCA is given authority to investigate pursuant to the power conferred upon it in O.C.G.A. § 10-1-393.5.

As discussed above, O.C.G.A. § 16-9-4 prohibits the possession, display, or use of false, fraudulent, or altered identification documents as well as the manufacture, alteration, sale, delivery, or distribution of false or fictitious identification documents. It is also unlawful under this code section to possess, display, or use any false identification document bearing the logo or official seal of any government agency to further any conspiracy or attempt to commit any felony offense or to manufacture, sell, or distribute any such false identification document bearing the logo or seal of a government agency without the written consent of the government agency. O.C.G.A. § 16-9-4(b)(1), (2), (4), and (5).

The manufacturers of false identification documents are facilitating the epidemic of identity fraud currently afflicting Georgia and the nation. It is common for identity fraud rings to purchase false identification documents from these manufacturers to use in their criminal schemes. Indeed, some rings have their own computer equipment to create false identifications. It is thus clear that these individuals use computers to create “devices” or “artifices,” i.e., the false identification documents, which are used to defraud and deceive creditors and other victims or otherwise to commit theft.

Therefore, it is my official opinion that the Governor’s Office of Consumer Affairs, through its criminal law enforcement investigators, is authorized to conduct investigations of possible violations of O.C.G.A. § 16-9-4 if there is reason to suspect that the manufacturers of false or fraudulent identification documents are using computers or computer networks in the creation of documents intended to deceive or be used in fraudulent schemes, including but not limited to identity fraud, or other species of theft.

Prepared by:

Michael E. Hobbs
Deputy Attorney General

1 “Identification document” is defined as “[a]ny document or card issued to an individual” by or under the authority of a government, e.g., a driver’s license, or “[a]ny document issued to an individual for the purpose of identification by or with the authority of the holder of a trademark or trade name of another” and identifying the person to whom the document is issued, or an “access device,” e.g., a credit card or building entry card. O.C.G.A. § 16-9-4(a).